Sebastian Rucci, et al v. Mahoning County

Before the Court is a motion to amend the complaint (Doc. 16) filed by plaintiffs Sebastian Rucci ("Rucci"), 5455 Clarkins Drive, Inc. ("Clarkins"), GoGo Girls Cabaret, Inc. (the "Cabaret"), and Triple-G Investments, Inc. ("Triple-G") (collectively as "plaintiffs"). Defendants Mahoning County (the "County") and Austintown Township (the "Township") have opposed the motion (Docs. 19, 20) and plaintiffs have filed a reply brief (Doc. 22).

Additionally, on September 13, 2011, the County filed a motion for sanctions against plaintiffs' attorney Sebastian Rucci. (Doc. 24.) Plaintiffs filed a brief in opposition to the County's motion 38 days later on October 21, 2011. (Doc. 25.) The County moved to strike plaintiffs' response as untimely, or in the alternative to file a reply in further support of its motion for sanctions. (Doc. 26.) Plaintiffs responded to the motion to strike (Doc. 26) by filing a motion for leave (Doc. 27) to file, instanter, their response to the motion for sanctions (Doc. 24). Plaintiffs also filed a response (Doc. 28) to the County's motion to strike (Doc. 26).

For the reasons that follow, the Court GRANTS in part and DENIES in part the County's motion to strike. (Doc. 26.) The Court DENIES the County's motion to strike plaintiffs' response and GRANTS the County's motion for leave to file a reply to plaintiffs' response. (Doc. 26.) Additionally, the Court GRANTS plaintiffs' motion for leave to file (Doc. 27), instanter, their response to the motion for sanctions. As to the remaining motions, the Court has determined that it will ABSTAIN pursuant to Younger v. Harris, 401 U.S. 37 (1971), and will STAY this case until the state criminal proceedings against plaintiffs have been completed. Accordingly, the Court will offer no opinion as to the merits of any of the parties' allegations, claims or defenses at this time.

I.BACKGROUND

The instant action alleges that the defendants have harassed and retaliated against plaintiffs in connection with their operation of an "adult cabaret," known as the GoGo Girls Cabaret, in Austintown Township, Mahoning County, Ohio. The Cabaret began operating in Austintown Township in 2007. Plaintiffs assert that as the Cabaret's popularity grew, a rival adult entertainment business, Club 76, began to exert political influence over defendants to have the cabaret closed. To this end, defendants are alleged to have denied plaintiffs' request for advertising permits, despite granting similar permits to Club 76. Further, the Township is alleged to have arbitrarily denied the Cabaret's liquor license. According to the complaint, the harassment did not end there.

Plaintiffs claim that defendants orchestrated a campaign to buy drugs inside the Cabaret so that they could seek its closure under state nuisance law. According to plaintiffs, the campaign was "bought and paid for" by their competitors. On May 1, 2009, authorities conducted a raid and ex parte closure of the Cabaret, searching the entire premises, the patrons, and employees for drugs and seizing four computers, alleged to contain attorney-client privileged information. Plaintiffs assert that defendants obtained the ex parte closure of the club based on false statements and further sought a search warrant based on the same false information and illegal wiretaps and recordings. Plaintiffs claim to have video footage that shows that the sting operation was a pretext and assert that not a single drug related charge was ever brought against anyone as a result. Subsequent to the raid, nuisance proceedings were held in the state court, which resulted in an order reopening the Cabaret.

Following the reopening of the Cabaret, plaintiffs assert that defendants were still determined to see the Cabaret closed and focused on challenging the Cabaret's liquor license, which it needed to stay in business. On August 7, 2009, plaintiffs filed a civil rights action (the "First Action") in this Court seeking to enjoin the revocation of its liquor license. 5455 Clarkins Drive, Inc. v. Terry Poole, No. 1:09-cv-1841 (N.D. Ohio). The Court granted plaintiffs' request for a temporary restraining order finding severe procedural deficiencies in the operation of the liquor permit review by the state. 5455 Clarkins Drive, Inc. v. Poole, No. 1:09-CV-01841, 2009 WL 2567761 (N.D. Ohio Aug. 17, 2009), aff'd, 384 F. App'x. 458 (6th Cir. 2010). The Court later granted summary judgment to the County, 5455 Clarkins Drive, Inc. v. Poole, No. 1:09-CV-01841, 2009 WL 4281461 (N.D. Ohio Nov. 25, 2009), and elected to administratively close the case under grounds of abstention for the claims pending against the Township and others. 5455 Clarkins Drive, Inc. v. Poole, No. 1:09-CV-01841 (Doc. 60).

In April 2010, a Mahoning County Grand Jury indicted plaintiffs and others on 81 criminal charges, including racketeering, prostitution, and promoting prostitution. (Doc. 16-1 at 20, 22.) On April 16, 2010, the Mahoning County Court of Common Pleas arraigned plaintiff Rucci, and on April 27, 2010, the court arraigned the remainder of the plaintiffs. State of Ohio v. Rucci, et al., No. 50 2010CR364 (Mahoning Cnty. Ct. C.P.). The criminal charges against plaintiffs remain pending before the Mahoning County Court of Common Pleas in case number 50-2010-CR-00364, and trial is scheduled to begin on November 14, 2011.

On May 2, 2011, plaintiffs filed the instant suit. (Doc. 1.) The complaint seeks damages pursuant to 42 U.S.C. § 1983 for violations of plaintiffs' civil rights, as follows: Count I for unreasonable search in violation of the Fourth and Fourteenth Amendments; Count II for unlawful seizure of the Cabaret without due process of law in violation of plaintiffs' First, Fourth, Fifth and Fourteenth Amendment rights; and Count III for an official policy and custom of retaliation in violation the First Amendment. Plaintiffs also assert a state law claim in Count IV for damages for abuse of process.

On May 5, 2011, the Mahoning County defendants filed a motion to dismiss the Complaint (Doc. 6) pursuant to Fed. R. Civ. P. 12(b)(6), asserting that this action is barred on res judicata grounds because the County was awarded summary judgment in the First Action. 5455 Clarkins Drive, Inc. v. Poole, No. 1:09-CV-01841, 2009 WL 4281461 (N.D. Ohio Nov. 25, 2009). On June 7, 2011, the Austintown Township defendants filed their motion to dismiss the complaint (Doc. 14), arguing that the Court lacks subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and that the complaint fails to state a claim on which relief can be granted pursuant to Fed. R. Civ. P. and 12(b)(6). Specifically, the Township defendants argued that plaintiffs' claims are barred by res judicata, and that the Complaint contains insufficient allegations to support plaintiffs' abuse of process and unconstitutional policy claims. Alternatively, the Township defendants moved the Court to abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971) due to the pending state criminal proceedings against plaintiffs.

In response to defendants' motions to dismiss, plaintiffs filed notices of intent to file an amended complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B). (Docs. 8, 15.) Plaintiffs, however, failed to timely file their amended complaint and moved for an extension of time in which to file. (Doc. 11.) On June 8, 2011, the Court denied plaintiffs' motion, but granted plaintiffs leave to file a properly supported motion for leave to amend under Rule 15(a)(2).

On June 16, 2011, plaintiffs filed their motion to amend, attaching a copy of the proposed amended complaint. (Doc. 16.)*fn1 Defendants opposed the motion. (Docs. 19, 20.) Additionally, the County filed a motion for sanctions against plaintiff Rucci, asserting that the filing of this action is an attempt by Mr. Rucci to derail the criminal prosecution of plaintiffs in the state court. (Doc. 24.)*fn2 Plaintiffs filed an opposition (Doc. 25) to the County's motion for sanctions, which the County moved to strike (Doc. 26) as untimely. In the alternative, the County requests leave to file a reply brief in further support of its ...

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